ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 85 



reponse sans repliqne, and lias been generally recognized as a very just 

 statement. 1 am reading now from the 12tli page of my argument: 



The law of natious is said to be foiincied upon justice, equity, convenience, and 

 the reason of the thing and confirmed by long usage. 



And Chancellor Kent has spoken to the same point with great clear- 

 ness (Comm., part I, lect. 1, p. 2-4) : 



The most useful and practical part of the law of nations is, no doubt, instituted or 

 positive law, fouudcn on usage, consent, and agreement. But it would be improper 

 to separate this law entirely from natural jurisprudence and not to consider it as 

 deriving much of its force and dignity from the same princii)les of right reason, the 

 same views of the nature and constitution of man, and the same sanction of divine 

 revelation, as those from which the science of morality is deduced. There is a natu- 

 ral and a positive law of nations. By the former every state, in its relations with 

 other states, is bound to conduct itself with justice, good faith, and benevolence; 

 and this application of the law of nature has been called by Vattel the necessary 

 law of nations, because nations are bound by the law of nature to observe it; and it 

 is termed by others the internal law of nations, because it is obligatory upon them 

 in point of conscience. 



We ought not, therefore, to separate the science of public law from that of ethics, 

 nor encourage the dangerous suggestion that governments are not so strictlj' bound 

 by the obligations of truth, justice, and hunuiuity, in relation to other powers, as 

 they are in the management of their own local concerns. States or bodies politic 

 are to be considered as moral persons, having a public will, capable and free to do 

 right and wrong, inasmuch as they are collections of individuals, each of whom car- 

 ries with him into the service of the communitj' the same binding law of morality 

 and religion which ought to control his conduct in private life. The law of nations 

 is a complex system, comjjosed of various ingredients. It consists of general princi- 

 ples of right and justice, equally suitable to the government of individuals in a state 

 of natural equality and to the relations and conduct of natious; of a collection of 

 usages, customs, and opinions, the growth of civilization and commerce, and of a 

 code of conventional or positive law. 



In the absence of these latter regulations, the intercourse and conduct of nations 

 are to be governed by principles fairly to be deduced from the rights and duties of 

 nations and the nature of moral obligation; and we have the autliority of the law- 

 yers of antiquity, and of some of the first masters in the modern school of public 

 law, for placing the moral obligation of natious and of individuals on similar grounds, 

 and for considering individual and national morality as parts of one and the same 

 science. 



The law of nations, so far as it is founded on the principles of natural law, is 

 equally binding in every age and upon all mankind. 



And a French writer, Hautefeuille, has spoken to the same point {Des 

 Droits et des Devoirs des Nations Neutres en Temps de Guerre Maritime, 

 1848, vol. I, Translation) : 



He (God) has given to nations and to those who govern them a law which they are 

 to observe towards each other, an unwritten law, it is true, but a law which He has 

 taken care to engrave in indelible characters in the heart of every man, a law which 

 causes every human being to distinguish what is true from what is false, what is just 

 from what is unjust, and what is beautiful from what is not beautiful. It is the 

 divine or natural law; it constitutes what I shall call primitive law. 



This law is the only basis and the only source of international law. By going 

 back to it, and by carefully studying it, we may succeed in retracing the rights of 

 natious with accuracy. Every other way leads infallibly to error, to grave, nay, 

 deplorable error, since its immediate result is to blind nations and their rulers, to 

 lead them to misunderstand their duties, to violate them, and too often to shed tor- 

 rents of human blood in order to uphold unjust pretensions. The divine law is not 

 written, it has never been formulated in any human language, it has never been 

 promulgated by any legislator; in fact, this has never been possible, because such 

 legislator, being man and belonging to a nation, was from that very fact without 

 any authority over other nations, and had no power to dictate laws to them. 



International law is, therefore, based upon the divine and primitive law; it is all 

 derived from this sourtie. By the aid of this single law, I firmly believe that it is 

 not only possible, but even easy, to regulate alt relations that exist or may exist 

 among the nations of the universe. This common and positive law contains all the 

 rules of justice; it exists independently of all legislation, of all human institutions, 

 and it is one for all natious. It governs peace and war, and traces the rights and 

 duties of every position. The rights which it gives are clear, positive, and absolute ; 



